The Second Circuit Court of Appeals rules that resale of digital content as conceived by the startup ReDigi is a copyright infringement.

‘This Cockroach of a Legal Case’

Probably the most ringing phrase in this week’s news about the Capitol Records v. ReDigi case is Michael Cader’s “once again.”

In his report at Publishers Lunch, Cader is getting at the revolving-door feel of a long-running and failed effort.

He writes, “Just as a district court unequivocally and thoroughly called the (now bankrupt) startup ReDigi’s efforts to establish a scheme and marketplace for reselling ‘used’ copies of copyrighted digital files of music (and thus potentially ebooks, as well as video, games and software) copyright infringement in 2013, the Second Circuit Court of Appeals has ratified that decision in this cockroach of a legal case.”

And he’ll get no argument from the Association of American Publishers. In a statement from the AAP’s president and CEO, Maria A, Pallante, we read:

“Publishers welcome the Second Circuit’s sound ruling in Capitol Records v. ReDigi on on the three major issues addressed in the opinion.

“First, in applying the plain meaning of the Copyright Act, the court confirmed that when a defendant makes unauthorized reproductions of copyrighted works and distributes them, it is not merely reselling or retransferring used works in the manner of a used bookstore. Rather, it is engaged in copyright infringement, and therefore disqualified from asserting the limitations on the distribution right afforded by the first sale doctrine.

“Second, the court unequivocally rejected fair use, in which it highlighted that the defendant’s conduct creates nearly identical copies of protected works and is therefore aimed squarely at the copyright owners’ primary markets.

“Third, the court rejected the invitation from law professors to overtake Congress on matters of policy, noting that on the question of whether first sale should be extended to the digital realm, it is not the court but Congress they must seek to persuade.

“This case is critical in that it reinforces the underlying equities of the copyright law, in which the rights and investments of copyright owners are a valuable part of the marketplace of innovation, not to be minimized or appropriated in the name of expediency.”

In essence, per the AAP, the court’s opinion is—once again, as Cader has it—a rejection of the “first sale doctrine” as a defense of the idea of making unauthorized copies of digital files.

Plainly put: No, you cannot sell your ebooks to a second-hand vendor as you might sell your used physical textbooks to the campus bookstore.

Some of us remember numbing presentations in New York years ago of the ReDigi concept of a “used digital resale platform,” and as far back as March 2013, a Tools of Change article from Jenn Webb looked at the issue and many viewpoints on it–mentioning even then “ReDigi’s ongoing court case.”

At Publishers Weekly, Andrew Albanese this week looks back at how, “When it first launched in 2011, ReDigi touted the legality of its service. Users could upload their old iTunes tracks to ReDigi, which removed the tracks from the user’s computer, and offered them for resale. The company stressed that it never copied the files, but rather ‘migrated’ them, bit by bit, from one device to another, the end result mimicking an analog resale.”

Albanese also refers to the amicus brief filed last year by the AAP in the case, in which the association warned of “grave and immediate consequences for the publishers of literary works in print and digital formats,” something that would be “out of step with the careful calibrations employed by Congress and the courts when considering infringements” to copyright protection.

As Albanese now writes, “If digital first sale is going to become a reality, it may take an act of Congress to do it.

“In a highly anticipated decision, a three-judge panel of the Second Circuit Court of Appeals this week shot down the prospect of a resale market for digital files emerging any time soon, unanimously affirming a 2013 ruling that effectively shut down ReDigi, the upstart service created in 2011 to offer consumers a way to resell their legally purchased iTunes files.”

by Porter Anderson - Originally published on December 3, 2018 in Publishing Perspective

In their filing supporting the students’ lawsuit in Detroit on appeal, PEN’s attorneys write that ‘One clear effect of the lack of access to literacy education is the inability to critically analyze “fake news.”‘

‘A Tragedy for All of Us’

A “friend of the court” amicus brief was filed at the end of last month (November 26) by PEN America, urging the Sixth Circuit Court of Appeals to recognize Americans’ constitutional right of access to literacy.

PEN America filed the brief in the case of Gary B v. Snyder, in which students at Detroit Public Schools have brought suit against the state of Michigan for a failure to provide what they assert are basic educational standards necessary to ensure that these children have a functional level of literacy.

In the suit, the students describe the conditions of their education as including unsanitary and dangerous situations, an absence of appropriate textbooks or other reading material, and overcrowded classrooms. As a result, many of these students assert that they’re unable to read, write, or process written material at anything approaching grade level.

The United States District Court for the Eastern District of Michigan dismissed the students’ suit in June—as is covered by Stephen Sawchuk at Education Week. And the case now is on appeal before the federal Sixth Circuit.

In its brief, PEN’s staff writes, “Depriving these children—our children—of access to literacy is an unacceptable and immoral tragedy for them. It is also a tragedy for all of us that is and should be unconstitutional.”

The amicus brief also stresses the economic challenges involved, its text stating that people “who lack literacy are far more likely to be low wage workers or unemployed and to rely on public financial aid. Their inability to get by will be exacerbated as the economy continues to move away from low-skilled jobs.

PEN America refers to two of its original research reports—Missing from the Shelf: Book Challenges and the Lack of Diversity in Children’s Literature (covered here by Publishing Perspectives) and Faking News: Fraudulent News and the Fight for Truth—to argue for the essential role of literacy.

“Low literacy also affects health and health care literacy, creating inefficiencies in our health care system and increased dependence on Medicaid. And low literacy is highly correlated with incarceration and recidivism, including among juveniles. Recognizing that access to literacy is a fundamental constitutional right would help address each of these concerns.”

US literacy rates, the filing asserts, “have made little progress in the last few decades,” with the rate between 2012 and 2014 not showing significant improvement over where it was between 1994 and 1998.

“As an organization of writers and readers, we can proudly attest to how literacy is essential to meaningful social and political participation in our communities.”James Tager

The filing also draws a connection between literacy and the ability to recognize fake news, the PEN attorneys writing, “PEN America’s October 2017 report, Faking News: Fraudulent News and the Fight for Truth, details the alarming inability of many Americans to understand the difference between accurate reporting and fraudulent news or advertising, and the threat it poses to American democracy, which requires an informed and engaged electorate.

“False information presented as factual, with the intention to deceive, undermines our democracy and our way of life by obscuring the truth, increasing political polarization, sowing distrust, stymying public debate, hindering the development of evidence- and fact-driven public policy, increasing vulnerability to private and foreign interests, escalating panic and irrational behavior during emergency situations, creating a culture of cynicism and permitting elected officials to avoid accountability.”

In a prepared statement, James Tager, PEN’s deputy director of free expression research and policy, is quoted, saying, “The complete failure of the state of Michigan to ensure a basic standard of literacy for these students is not only an outrage, it is also unconstitutional.

“PEN America has championed the freedom to write and to read for almost 100 years, and we recognize that this freedom to read is inextricable from the right, firstly, of access to literacy.

“As an organization of writers and readers, we can proudly attest to how literacy is essential to meaningful social and political participation in our communities. With this brief, we’re urging the Sixth Circuit to do the right thing and to take this step toward recognizing the right of access to literacy.” PEN America—which has merged the former two PEN chapters in the United States—was founded in 1922 and today has more than 7,000 writers and their supporters as its membership. It’s the US chapter of the PEN International movement.

Many authors join Texas Authors & Indie Beacon and then abruptly leave as they are expecting to see quick results by us selling their books for them. This quick result concept also applies to when an author goes to a book festival. They expect to sell enough books to at least pay for their expenses. Both of these are short-sighted views on marketing books. Texas Authors & Indie Beacon is about the long-term goal of creating a career as an Authorpreneur. Authors are creative people and want to write stories that move people and sell great numbers of copies. To do this is expensive and many authors want to see a return for their investment (ROI) as quickly as possible. Those authors miss the bigger picture of long-term growth. Just like expecting to earn their money back at the book festival, they miss the fact that someone they may have met may be that one person who loves their book so much that they can’t stop talking about it. That one person could in fact be the person that makes the author famous.

Would you go into a job as a new employee and expect to be promoted to the boss’s job immediately? Would you expect to be earning the top wages immediately? No. If your job required training of some sort, you may have gone to college or spent years doing ‘on the job’ training to become great at what you do and to be able to earn the big bucks. It is exactly the same with being an Author.

While you may be able to crank out a manuscript in a few weeks, months or within a year’s time, this doesn’t mean that it will be an instant best seller. Writing that book in today’s world is only 10% of the work. The remainder of the work is still ahead of you and may take years to accomplish. It is this aspect of being an author that Texas Authors was created for.

It seems almost funny for me, of all people to be typing this, as I am one who is impatient and wants to see results quickly. I have learned over the past 7 years to be patient and to work hard to create an organization that will help authors to succeed. I still have a lot of work ahead of me, and I am more than eager to work hard at times, not at all times, but most. I am willing to continue to work 80-100 hours a week to build several organizations that give authors all the tools and possibilities to succeed if they too are willing to work at it.

I have seen many authors take their time and grow with the organization and continue to grow successfully with their books. Some have won awards over the years, some have seen nice increases in book sales and many have been inspired to become the best Authorpreneur they can be.

Texas Authors and I are always eager to hear of new ideas and concepts that will help our programs, events and opportunities to continue to grow and become stronger. I will test things to see if they work and if they don’t. I will share with the membership my thoughts about those items. I do not want the author to reinvent the wheel. I encourage each author to plan to be with us for more than one year, maybe several years so that as we continue to grow and learn new and exciting things in the publishing world, that it too will help you to grow stronger and better as an Authorpreneur.

Don’t fall for those schemes where someone has a person that sold a million copies of their books and now wants to share how you too can do the same. They just want your money, and yes, a million other people bought into that scheme and made that sales person rich. Remember, of the over 1 million authors in the USA, only 10% have sold more then 100,000 copies of their books. That doesn’t mean you can’t do it, but it does mean you have to work at it, just like they did.

Texas Authors continues to become a serious player in the world of publishing, and as a member, that benefits you in more ways then you may know. That’s part of the team work and family of authors that we have created over the years. We welcome you to not only be a part of it but be a family member for the long term. Families grow stronger together, not apart!